Bohnert v. The Roman Catholic Archbishop of San Francisco et al

Filing 40

STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS re 38 Stipulation. Signed by Judge William H. Orrick on 10/03/2014. (jmdS, COURT STAFF) (Filed on 10/3/2014)

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DEBORAH KOCHAN (S.B. #152089)
[e-mail]
MATHEW STEPHENSON (S.B. #154330)
[e-mail]
KOCHAN & STEPHENSON
1680 Shattuck Avenue
Berkeley, California 94709
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff

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GEORGE J. TICHY, II (S.B. #041146)
[e-mail]
MICHELLE R. BARRETT (S.B. #197280)
[e-mail]
LISA LIN GARCIA (S.B. #260582)
[e-mail]
LITTLER MENDELSON, P.C.
650 California Street, 20th Floor
San Francisco, CA 94108-2693
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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Case No. 14-02854-WHO
KIMBERLY BOHNERT,
Plaintiff,
v.
THE ARCHDIOCESE OF SAN
STIPULATED PROTECTIVE ORDER RE
FRANCISCO; JUNIPERO SERRA HIGH
CONFIDENTIAL DOCUMENTS
SCHOOL; THE ROMAN CATHOLIC
ARCHBISHOP OF SAN FRANCISCO; THE
ARCHDIOCESE OF SAN FRANCISCO
PARISH AND SCHOOL JURIDIC
PERSONS REAL PROPERTY SUPPORT
CORPORATION; THE ARCHDIOCESE OF
SAN FRANCISCO PARISH, SCHOOL AND
CEMETERY JURIDIC PERSONS CAPITAL
ASSETS SUPPORT CORPORATION; and
DOES 1 through 25,
Defendants.

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Stipulated Protective Order

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PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Disclosure and discovery may involve information relating to minors and current and former

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students. Accordingly, the parties hereby stipulate to and petition the court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles. The parties further acknowledge, as

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set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file

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confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

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followed and the standards that will be applied when a party seeks permission from the court to

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file material under seal.

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2.

DEFINITIONS
2.1 Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it

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is generated, stored or maintained) or tangible things that qualify for protection under Federal

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Rule of Civil Procedure 26(c).

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2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel
(as well as their support staff).
2.4 Designating Party: a Party or Non-Party that designates information or items
that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5 Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.
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2.6 Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert

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witness or as a consultant in this action.

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2.7 House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.

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2.8 Non-Party: any natural person, partnership, corporation, association, or other
legal entity not named as a Party to this action.

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2.9 Outside Counsel of Record: attorneys who are not employees of a party to
this action but are retained to represent or advise a party to this action and have appeared in this

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action on behalf of that party or are affiliated with a law firm which has appeared on behalf of

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that party.

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2.10 Party: any party to this action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their support

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staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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2.13 Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL.”

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2.14 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
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SCOPE
The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also (1) any information copied or extracted from Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any
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testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected

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Material. However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time of disclosure

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to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving

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Party as a result of publication not involving a violation of this Order, including becoming part

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of the public record through trial or otherwise; and (b) any information known to the Receiving

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Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source

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who obtained the information lawfully and under no obligation of confidentiality to the

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Designating Party, except for confidential and/or sensitive documents discussing any current or

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former students by name. Any confidential and/or sensitive documents discussing any current or

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former students by name is covered by the protection conferred by this Stipulation. Any use of

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Protected Material at trial shall be governed by a separate agreement or order.

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4.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing

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or a court order otherwise directs. Final disposition shall be deemed to be the later of

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(1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final

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judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials,

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or reviews of this action, including the time limits for filing any motions or applications for

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extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or Non-Party that designates information or items for protection under this Order must take

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care to limit any such designation to specific material that qualifies under the appropriate

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standards. The Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify – so that other portions of the

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material, documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) may expose the Designating Party to potential sanctions

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under controlling legal standards.
If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must promptly

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notify all other Parties that it is withdrawing the mistaken designation.

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5.2 Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only

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a portion or portions of the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by making appropriate markings in the

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margins).

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A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has indicated

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which material it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the Producing

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Party must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If

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only a portion or portions of the material on a page qualifies for protection, the Producing Party
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also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the

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margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that

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the Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony.

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(c) for information produced in some form other than documentary and for any

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other tangible items, that the Producing Party affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s).

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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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to designate qualified information or items does not, standing alone, waive the Designating

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Party’s right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation

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of confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

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good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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forms of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no change in designation is offered,

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to explain the basis for the chosen designation. A Challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer process first or

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establishes that the Designating Party is unwilling to participate in the meet and confer process in

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a timely manner.

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6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality under

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days

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of the initial notice of challenge or within 14 days of the parties agreeing that the meet and

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confer process will not resolve their dispute, whichever is earlier. Each such motion must be

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accompanied by a competent declaration affirming that the movant has complied with the meet

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and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to

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make such a motion including the required declaration within 21 days (or 14 days, if applicable)

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shall automatically waive the confidentiality designation for each challenged designation. In

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addition, the Challenging Party may file a motion challenging a confidentiality designation at

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any time if there is good cause for doing so, including a challenge to the designation of a

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deposition transcript or any portions thereof. Any motion brought pursuant to this provision must

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be accompanied by a competent declaration affirming that the movant has complied with the

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meet and confer requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass

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or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party

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to sanctions. Unless the Designating Party has waived the confidentiality designation by failing

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to file a motion to retain confidentiality as described above, all parties shall continue to afford

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the material in question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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When the litigation has been terminated, a Receiving Party must comply with the provisions of

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section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons authorized

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under this Order.

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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the parties and Receiving Party’s Outside Counsel of Record in this action, as

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well as employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure

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is reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock

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jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be

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separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order;

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this action as “CONFIDENTIAL,”

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that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena or order is

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subject to this Protective Order. Such notification shall include a copy of this Stipulated

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Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by

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the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the subpoena or

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court order shall not produce any information designated in this action as “CONFIDENTIAL”

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before a determination by the court from which the subpoena or order issued, unless the Party

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has obtained the Designating Party’s permission. The Designating Party shall bear the burden
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and expense of seeking protection in that court of its confidential material – and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

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IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a Non-

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Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non-

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Parties in connection with this litigation is protected by the remedies and relief provided by this

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Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to produce a

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Non-Party’s confidential information in its possession, and the Party is subject to an agreement

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with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

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promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement with a

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Non-Party;

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2.

promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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3.

make the information requested available for inspection by the

Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request. If the

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Non-Party timely seeks a protective order, the Receiving Party shall not produce any information

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in its possession or control that is subject to the confidentiality agreement with the Non-Party

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before a determination by the court.1 Absent a court order to the contrary, the Non-Party shall

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bear the burden and expense of seeking protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this Stipulated

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Protective Order, the Receiving Party must immediately (a) notify in writing the Designating

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Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of

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the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection, the

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obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure

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26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in

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an e-discovery order that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect

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of disclosure of a communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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12.

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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the court in the future.

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The purpose of this provision is to alert the interested parties to the existence of
confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its
confidentiality interests in this court.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order, no Party waives any right it otherwise would have to object to disclosing or

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producing any information or item on any ground not addressed in this Stipulated Protective

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Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of

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the material covered by this Protective Order.

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12.3 Filing Protected Material. Without written permission from the Designating

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Party or a court order secured after appropriate notice to all interested persons, a Party may not

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file in the public record in this action any Protected Material. A Party that seeks to file under seal

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any Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be

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filed under seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a

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request establishing that the Protected Material at issue is privileged, protectable as a trade

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secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file

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Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then

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the Receiving Party may file the information in the public record pursuant to Civil Local Rule

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79-5(e) unless otherwise instructed by the court.

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13.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4,

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each Receiving Party must return all Protected Material to the Producing Party or destroy such

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material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all

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the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has

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not retained any copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
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legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

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product, and consultant and expert work product, even if such materials contain Protected

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Material. Any such archival copies that contain or constitute Protected Material remain subject to

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this Protective Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: September 17, 2014

KOCHAN & STEPHENSON

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By______________________________________
Deborah Kochan
Attorneys for Plaintiff

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Dated: September 17, 2014

LITTLER MENDELSON, P.C.

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By______________________________________
George J. Tichy, II
Michelle R. Barrett
Lisa Lin Garcia
Attorneys for Defendants

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: October 3, 2014

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_____________________________________
Honorable William H. Orrick
United States District Court Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States District Court for

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the Northern District of California on ___________, 2014 in the case of KIMBERLY BOHNERT

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v. THE ARCHDIOCESE OF SAN FRANCISCO, et al., United States District Court, Northern

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District of California, Case Number Case No. 3:14-cv-02854 WHO. I agree to comply with and

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to be bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment in the

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nature of contempt. I solemnly promise that I will not disclose in any manner any information or

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item that is subject to this Stipulated Protective Order to any person or entity except in strict

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compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Northern District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________
[printed name]
Signature: __________________________________
[signature]

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